Does the right to protest on private property trump the rights of property owners?

Pierre de Vos

Pierre de Vos

Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

31 Jan 2017 12:14 (South Africa)

After a group of lesbian, gay, bisexual, transgender and intersex (LGBTI) activists held a silent protest outside Soweto’s Grace Bible Church on Sunday, some people argued on social media and on radio talk shows that the protest violated the religious rights of the church and its congregants. This argument raises interesting questions about the right of individuals or groups to protest on private property. It may come as a surprise to some that the rights of demonstrators and protesters will often trump the rights of congregants and the church.

Members of Soweto’s Grace Bible Church have defended the church against accusations that it promotes discrimination against members of the LGBTI community by invoking their constitutional right to freedom of religion. According to this view, the Grace Bible Church has a right to promote its view on homosexuality, which means that criticism of the church constitutes an impermissible attack on the religious freedom of the church and its congregants.

The church and its members have sought to avoid any discussion on the merits of its beliefs, thus wrongly conflating what one has a right to do with what is morally right. But as the right to freedom of religion does not protect religious adherents or religious bodies from being criticised for what they believe and what they do in pursuance of those beliefs, the appeal to freedom of religion is misguided.

Either one believes that it is morally reprehensible to promote discrimination, or one believes that some forms of pernicious discrimination are religiously mandated. Although personally I find it bizarre that some people still argue about whether it is morally acceptable to discriminate against others (a bit like arguing whether the earth is flat or whether Steve Hofmeyr has the same musical talent as Beethoven or Brenda Fassie), fellow citizens with more resilience and patience than myself might well wish to engage the church on this point.

As is the case in any democracy, taking part in peaceful demonstrations and protests is one accepted way to challenge the view that it is morally acceptable for the religious institutions and people who belong to these institutions to discriminate against LGBTI people.

To have any real impact, the demonstration or protest will have to take place in or near the premises of the religious institution. If the religious institution attempts to prevent a protest from taking place on its premises, it would be infringing on the right of protesters – guaranteed by section 17 of the Constitution – to assemble peacefully and unarmed, to demonstrate, to picket and to present petitions.

It is understandable that congregants of the Grace Bible Church might wish to argue that protesters have no right to protest inside church property as such an argument will divert attention from the real issue: whether it is morally acceptable to discriminate and promote harm against members of the LGBTI community.

So let us get this distraction out of the way: the private property right of the church does not automatically trump the right of those who wish to demonstrate or protest against the homophobia of the church.

For some reason many South Africans still believe that the rights protected in the Constitution do not bind private individuals and institutions such as churches, businesses, private schools or clubs.

Perhaps indirectly influenced by a distinct strand of liberalism, many South Africans continue to argue (and wrongly so) that private individuals and institutions are permitted to discriminate against individuals based on their race, gender or sexual orientation. Some South Africans also wrongly seem to believe that their right to property (as it is a rather circumscribed right in our Constitution) automatically takes precedence over the constitutional rights of others.

Section 8(2) of the Bill of Rights clearly states that the provisions in the Bill of Rights bind all individuals and all private institutions to the extent that they are applicable, taking into account the nature of the right and the nature of the duty imposed by it.

This means that most rights bind private individuals and institutions and must be respected by them. If private individuals or institutions have the power to restrict the right in any meaningful manner, the court will almost certainly hold that the right also applies to that private individual or institution. However, a limited number of rights – like the right not to be deprived of citizenship – only bind the state, as private individuals or institutions do not have the power to deprive anyone of their citizenship.

This is why the right guaranteed in section 17 of the Bill of Rights – to assemble peacefully and unarmed, to demonstrate, to picket and to present petitions – must also be respected by private individuals and institutions where the failure to do so will drastically limit or extinguish the ability of right-holders to exercise their rights in a meaningfully way.

The owners of Sandton City will not be able to ban peaceful protests on its premises merely on the basis that the mall is privately owned. Similarly, the owners of a private school will not be permitted to ban pupils from taking part in a peaceful protest on school premises merely because the school is on private property. The same rule applies to any church or other religious institution.

While private institutions might arguably regulate protests to minimise disruption and to ensure the continuation of the core business of the institution, I can’t imagine a court finding that such an institution – whether it is a church, a private shopping mall or a private school – has a right to ban all forms of protest on its premises as this would either extinguish or severely weaken the right to protest, especially where the protest is aimed at the institution involved.

The Constitutional Court has emphasised the important role that peaceful protest plays in our democracy. In South African Transport and Allied Workers Union and Another v Garvas and Others the Court stated:

“This means that everyone who is unarmed has the right to go out and assemble with others to demonstrate, picket and present petitions to others for any lawful purpose. The wording is generous. It would need some particularly compelling context to interpret this provision as actually meaning less than its wording promises. There is, however, nothing in our own history or internationally that justifies taking away that promise.”

Congregants of a religious institution might argue that peaceful demonstrations or protests on church premises are not protected by the Constitution because there is a “particularly compelling” justification for extinguishing the right to protest on the premises of religious institutions. They may argue that the right of the religious institution and its members to have their freedom of religion protected provides such a justification. If the congregants or the religious institution can show that the demonstration or protest will infringe on their freedom of religion, they may have a point.

In S v Lawrence; S v Negal; S v Solberg the Constitutional Court held that the essence of freedom of religion “is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination”.

This means that protesters who storm a church building, disrupt a church service or threaten congregants with violence will almost certainly not be protected by the Constitution as their actions will infringe on the freedom of congregants to manifest their religious belief by worship and practice.

However, a peaceful protest conducted outside the church on church property will have no impact on the ability of congregants to manifest their religious beliefs through worship and practice. Such a protest might confront congregants with a view different from their own. But the right to freedom of religion does not include a right to be protected from information that invites you to reflect on the possible immorality and harmfulness of your beliefs.

Admittedly, when protesters enter a private property to protest, this will infringe on the property rights of the owners. The right to demonstrate and protest will not substantially be impeded where protesters are prohibited from protesting on private property not open to the public (for example, in a private home). In such a case, the property interest will almost certainly trump the interest in exercising your democratic right to demonstrate and protest.

But where a private property is open to the public or delivers some or other service to the public (a shopping mall, a school, a rugby stadium, a church, a golf club) the private property rights must almost certainly yield to the right to demonstrate and protest peacefully in order to ensure that the latter right is not extinguished or severely compromised.

Thinking citizens with a well-calibrated moral compass will seldom be fearful of being confronted by views they disagree with. Neither will they usually be angered and upset when their views are challenged by protesters or demonstrators.

Peaceful protests or demonstrations constitute an invitation by those who disagree with you to enter into a dialogue with them: to listen, to reflect, to argue and – where appropriate – to change your mind. It would therefore be wrong to categorise such peaceful demonstrations and protests as an unlawful infringement of the right to religious freedom. DM

Pierre de Vos

Pierre de Vos

Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

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Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.